RAJ SINGH Vs STATE OF HARYANA, ETC.
Bench: T.S. THAKUR,R. BANUMATHI,AMITAVA ROY
Case number: Crl.A. No.-000701-000702 / 2015
Diary number: 21051 / 2013
Advocates: VIVEK SINGH Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS . 701-702 /2015 (Arising out of S.L.P. (Crl.) Nos.5767-5768/2013)
RAJ SINGH ..Appellant Versus
STATE OF HARYANA ETC. ..Respondents WITH
CRIMINAL APPEAL NO. 703 OF 2015 (Arising out of S.L.P. (Crl.) No.6347/2013)
RAJ KUMAR ..Appellant Versus
MAHABIR & ORS. ..Respondents AND
CRIMINAL APPEAL NO. 704 OF 2015 (Arising out of S.L.P. (Crl.) No.10739/2013)
BHARAT SINGH ..Appellant Versus
RISHI PAL & ORS. ..Respondents
J U D G M E N T
R. BANUMATHI , J.
Leave granted.
2. These appeals by way of Special Leave arise out of
the common judgment dated 30.01.2013, passed by the
Punjab and Haryana High Court in Criminal Appeal
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No.D-440-DB of 2008 & Criminal Revision No.2758 of 2008,
by which, the High Court dismissed the Criminal Appeal of the
appellant-Raj Singh and partly allowed the Criminal Revision
qua Raj Singh filed by Bharat Singh and thereby converting
the conviction of the appellant under Section 304 Part 1 IPC to
Section 302 IPC and maintained sentence of life imprisonment
imposed on him and dismissed the revision qua Rishi Pal and
Rajpal.
3. Brief facts which led to the filing of these appeals
are as follows: The complainant-Bharat Singh serves in the
Army and on 23.11.2004, he came to his village for fifteen
days holidays. They are three brothers, Girdhari Lal, Devender
Singh and Bharat Singh. In his complaint, Bharat Singh
alleged that on 3.12.2004 at about 6.00 pm, when he was
standing at the main gate of his cousin’s house with one Tilak
Raj, Rishipal-brother of the appellant came there with an axe
in his hand and there was wordy altercation. Rishipal
assaulted the complainant-Bharat Singh with a Kulhari on his
left buttock, however, Bharat Singh managed to save his life,
and rushed towards his home. The complainant narrated the
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whole incident to his brother Devender Singh and he was
taken to the hospital wherein Dr. Gobind Singh at village
Badshahpur treated him and thereafter both the brothers
returned to the village. When the elder brother Girdhari
returned home at about 8.30 P.M., Bharat Singh narrated the
whole incident to him and he was rebuked by his elder
brother.
4. While the complainant and others were talking to
each other at the main gate, the appellant-Raj Singh, armed
with licensed pistol, Rishi, armed with countrymade pistol,
Rajendra and Ram Pal, armed with lathies came to the house
of Girdhari Lal and attacked Bharat Singh and others.
Appellant-Raj Singh fired shot at Girdhari’s chest from his
pistol and Girdhari fell down on the ground. When Bharat
Singh raised alarm, appellant fired at Bharat Singh which hit
his left back side below the shoulders. As Bharat Singh raised
alarm, Mahabir Singh and his elder brother Gajraj-PW6
rushed to the spot. Mahabir tried to lift Girdhari in order to
save him, at that time, Rishi again fired from the countrymade
pistol on Mahabir Singh and Gajraj. Further Rajender and
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Rampal assaulted Gajraj with lathis. Girdhari was immediately
taken to Government Hospital, Gurgaon for treatment where
the doctor declared him as “brought dead”. Injured persons
Mahabir, Gajraj-PW6 and Bharat Singh-PW1 were given
treatment. On receipt of ruqqa from the Government Hospital,
Gurgaon, PW13-Rajender Singh (ASI) recorded the statement
of PW1–Bharat Singh and registered the case in FIR
No.321/2004 under Section 302 IPC. On completion of
investigation, chargesheet was filed under Sections 323, 324,
302, 307 and 506 read with Section 34 IPC.
5. To bring home the guilt of the accused, prosecution
examined as many as thirteen witnesses and accused have
examined three defence witnesses. The Additional Sessions
Judge, Fast Track Court, Gurgaon vide judgment dated
17.05.2008 held that the appellant-Raj Singh had exceeded
the right of private defence and convicted the appellant-Raj
Singh under Section 304 Part-1 IPC and acquitted Rajpal and
Rishi Pal. The ASJ Vide separate order dated 20.05.2008,
sentenced the appellant-Raj Singh to undergo rigorous
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imprisonment for life and imposed a fine of Rs.7,000/- with
default clause.
6. Challenging the acquittal of Rishi Pal and Rajpal,
Bharat Singh-PW1 preferred Criminal Revision. Challenging
his conviction, Raj Singh-accused preferred Criminal Appeal
before the High Court wherein the High Court vide common
judgment dated 30.01.2013 dismissed the Criminal Appeal of
the appellant-Raj Singh and allowed the Criminal Revision
filed by the complainant-Bharat Singh and thereby converted
the conviction of the appellant under Section 304 Part 1 IPC to
Section 302 IPC and maintained the sentence of life
imprisonment imposed on him.
7. On the same day a cross case i.e. on 4.12.2004 in
the same police station was lodged by the appellant party
against Mahabir Singh and others and they were also charge
sheeted. Vide separate judgment dated 17.05.2008, trial court
held that complainant party namely, Mahabir Singh, Bharat
Singh, Gajraj, Anil and Satish are guilty of constituting
unlawful assembly and causing grievous injury with blunt
weapon to Rishi Pal and Rajpal and convicted them under
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Sections 148, 323, 325 and 452 IPC read with Section 149 IPC
and sentenced them to undergo various imprisonment
imposed on them. Being aggrieved, Bharat Singh, Mahabir
and others preferred appeal before High Court. Upon
consideration of evidence and material on record, High Court
held that reasonable doubts arise as to the prosecution
version regarding scene of occurrence and the manner of
attack and held that death of Girdhari and injuries to the
accused Mahabir Singh and others were not properly
explained which is fatal to the prosecution case and thus
acquitted Mahabir Singh, Bharat Singh and others.
8. Mr. Gurukrishna Kumar, learned Senior Counsel
appearing for the appellants contended that the place of
occurrence was house of the appellant which means that the
complainant party (seven in number) came to the house as
aggressors and the appellant had no option but to fire from his
gun in self defence of his own and his brothers and the alleged
act of the appellant cannot in any manner be said to be in
excess of right of private defence. It was further submitted
that the appellant had specifically urged private defence which
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was accepted by the trial court and erroneously rejected by the
High Court. Learned Senior Counsel urged that the High
Court was not right in dissecting the statement of the
appellant under Section 313 Cr.P.C. by relying upon the
inculpatory part of it but declining to take into account his
explanation as to how the firearm shot occurred and the
impugned judgment is unsustainable.
9. Per contra, learned counsel for the respondents
contended that no cogent evidence is on record to substantiate
the argument that complainant party were the aggressors. It
was submitted that the occurrence took place in the house of
the complainant but the police helped the appellant by
changing the place of occurrence after three-four days of
occurrence. It was argued that the act of the appellant in
firing gun shots was not in exercise of right of private defence
and the High Court rightly reversed the judgment of the trial
court and convicted the appellant under Section 302 IPC.
10. We have carefully considered the rival submissions
and perused the evidence and material on record and the
impugned judgment.
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11. PW1-Bharat Singh had spoken about the
occurrence in the evening that he was attacked by the accused
party with axe (kulhari) and PW1-Bharat Singh narrated the
same to his brothers Girdhari (deceased) and Anil Kumar–PW5
who returned home at about 8.30 P.M. after attending a
marriage party. Girdhari rebuked Bharat Singh and when
they were all talking in the house of Girdhari, the appellant
and his brother Rishi Pal and Rajpal came to the house of
Girdhari armed with deadly weapons. Appellant-Raj Singh
fired gun shots and Girdhari sustained firearm injury in his
chest and he fell down. Raj Singh fired at Bharat Singh-PW1
and injury was caused on the backside of his shoulder. When
Mahabir tried to lift Girdhari, at that time Rishi Pal fired at
Mahabir with countrymade pistol. Rajpal and Rajendra are
alleged to have given lathi blows on the person of Gajraj
Singh–PW6 and all the accused ran away, Girdhari was taken
to hospital and he was declared ‘brought dead’ by the doctor.
PW1-Bharat Singh, PW5-Anil Kumar and PW6-Gajraj have
clearly spoken about the occurrence, they were consistent in
their version despite searching cross-examination and their
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evidence is trustworthy. Further, evidence of eye-witnesses is
strengthened by the medical evidence.
12. To substantiate the defence plea that the
complainant party are the aggressors, much reliance is placed
on the evidence of PW7-Dr. Kulvinder Singh, Senior Scientific
Officer who has stated that he visited the place of
occurrence–house of the accused as well as house of deceased
Girdhari on 7.12.2004. As per the site plan Ex.PG/I dead
body was detected at spot ‘A’ and that blood stains were
detected on polythene sheet at plan ‘C’ and splashes of blood
detected on dung cakes and one woolen monkey cap, four
empty cartridges and one live cartridge were recovered from
the courtyard of the house of the accused. PW7 specifically
stated that no blood stains or any other physical clues related
to the occurrence could be detected in the courtyard of the
house of deceased-Girdhari.
13. Laying much emphasis upon the site plan prepared
on 7.12.2004 and evidence of PW7, learned Senior Counsel for
the appellant submitted that PW7 is a government official and
an independent witness who has no reason to depose falsely in
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favour of the appellant and his statement has been further
corroborated by the evidence of the investigating officers
namely PW8-Kuldip Singh(SI) and PW13-Rajender Singh (ASI).
Learned Senior Counsel further submitted that the High Court
erred in saying that there was no explanation as to how the
articles remained in the courtyard of the house of the accused
and were not recovered for four-five days, the High Court has
not properly appreciated the evidence of PW13 and erred in
reversing the findings of the trial court.
14. It is to be noted PW8-Kuldeep Singh, Sub Inspector
of Police had deposed that on 4.12.2004, he along with DSP
Sube Singh and other police officials went to Girdhari’s house
and recorded the statement of one Rajkumar and others and
spot inspection was also conducted as per their version and
according to him no site plan was prepared on 4.12.2004 as
the ladies of the house were weeping and everyone was
disturbed. On 5.12.2004, PW8-Kuldeep Singh (SI) prepared
the site plan of the place of occurrence as given in the F.I.R.,
but according to PW8, no physical evidence was available at
the spot on 5.12.2004. On 7.12.2004, a team of experts along
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with PW13-Rajender Singh (ASI) inspected the house of the
accused-Raj Singh and Rajpal and recovered four empty
cartridges, one live cartridge, monkey cap and five pairs of
hawai chappals and blood stains on polythene. It is a matter
of common knowledge that the above material objects
recovered on 7.12.2004 could have been noticed with naked
eyes. While so, it is quite unnatural as to why the above
material objects were not recovered on 4.12.2004 and
5.12.2004 inspite of the investigating team inspecting the spot
on those two days. It is in this backdrop, the evidence of
PW7-Dr. Kulvinder Singh and PW13-Rajender Singh (ASI) as
to the alleged recovery on 7.12.2004 has to be examined.
15. PW13-ASI Rajender Singh has stated that he made
enquiries from some persons and he came to know that the
actual place of occurrence is the house of appellant and as
such no person has been examined in the court to show that
the place of occurrence was the house of accused. In the site
plan prepared on 5.12.2004, the place of occurrence was
shown as in front of the house of Girdhari and not in the
courtyard of the house of the appellant. In their statement
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under Section 313 Cr.P.C., the accused have stated that
PW1–Bharat Singh and his brothers PW5-Anil Kumar,
deceased-Girdhari, joined together and went to the house of
the accused and that the place of occurrence is the house of
the accused. As rightly observed by the High Court, the
accused have also not examined any witnesses to substantiate
their plea. Ignoring these material aspects, in our view, the
Sessions Judge was not right in holding that the place of
occurrence was the house of the accused and that the
complainant party were the aggressors. The approach of the
learned Sessions Judge borders on perversity and reasons for
holding that the place of occurrence was the house of the
accused is factually unsustainable and the High Court rightly
set aside the findings of the trial court. We concur with the
findings of the High Court that the investigating officer had
helped the appellant by changing the place of occurrence to
make it appear that the complainant party were the
aggressors.
16. Plea of self-defence: The contention of the
appellant is that he is not an aggressor and since the
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complainant party was in possession of lethal weapons which
caused reasonable apprehension in the mind of the appellant
as to the threat to his life and his two brothers and therefore
the appellant had no option but to fire from his gun and the
alleged act of the appellant cannot, in any manner, be said to
be in excess of his right of private defence.
17. The right of private defence is codified in Sections
96 to 106 IPC. Section 96 declares that “nothing is an offence
which is done in exercise of the right of the private defence”.
Section 97 states that every person has right of defence of
person as well as of property. Section 100 describes the
situations in which the right of private defence of body extends
to the extent of voluntarily causing of death. To claim right of
private defence extending to voluntary causing of death, the
accused must show that there were circumstances giving rise
to reasonable grounds for apprehending that either death or
grievous hurt would be caused to him. The law of private
defence does not require that the person assaulted or facing
apprehension of an assault must run away for safety. It
entitles him to defend himself and law gives him right of
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private defence. There is no right of private defence where
there is no apprehension of danger. Necessity of averting and
impending danger must be present, real or apparent.
18. Elaborating the scope of right of private defence, in
Dharam And Ors. vs. State of Haryana, (2007) 15 SCC 241 in
paragraphs (18) and (19) it was held as under:-
“18. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the nature of assault on him, etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.
19. It is trite that the burden of establishing the plea of self-defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self-defence to the hilt and may discharge the
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wonus by showing preponderance of probabilities in favour of that plea on the basis of the material on record (see Munshi Ram v. Delhi Admn.(AIR 1968 SC 702), State of Gujarat v. Bai Fatima((1975) 2 SCC 7) and Salim Zia v. State of U.P.(1979) 2 SCC 648).”
19. In the case of Bhanwar Singh & Ors. vs. State of
M.P., (2008) 16 SCC 657, in paragraphs (50) and (60) it was
held as under:-
“50. The plea of private defence has been brought up by the appellants. For this plea to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death. Hence, if the court were to reject this plea, there are two possible ways in which this may be done. On one hand, it may be held that there existed a right to private defence of the body. However, more harm than necessary was caused or, alternatively, this right did not extend to causing death. Such a ruling may result in the application of Section 300 Exception 2, which states that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. The other situation is where, on appreciation of facts, the right of private defence is held not to exist at all.
60. To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present, real or apparent”. (emphasis added)
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The same view is also expressed in the cases of Biran Singh vs.
State of Bihar, AIR 1975 SC 87, Wassan Singh vs. State of
Punjab,(1996) 1 SCC 458, Sekar alias Raja Sekharan vs. State
represented by Inspector of Police, T.N., (2002) 8 SCC 354, Buta
Singh vs. State of Punjab, AIR 1991 SC 1316 and James Martin
vs. State of Kerala, (2004) 2 SCC 203.
20. In the present case, plea of private defence has been
put forth by the appellant. To succeed in the plea of private
defence, the appellant has to prove that he exercised right of
private defence in his favour and this right extended to the
extent of causing death. In the facts and circumstances of the
present case, let us consider whether right of private defence
was available to the accused. Case of the appellant is that
complainant party forcibly entered his house and started
fighting and the appellant had reasonable apprehension that
he would be hurt and therefore he fired the few shots in the
air, and during the scuffle, the complainant party tried to
forcibly snatch pistol from him and fire was shot which
incidentally hit the deceased-Girdhari. Further case of the
appellant is that the complainant party armed with weapons
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were the aggressors and they caused serious injuries to the
appellant and his brothers Rishi Pal and Rajpal.
21. DW2-Dr. Arun has expressed his opinion about the
injuries caused to Rishi Pal and stated that Rishi Pal sustained
some bruises and contusions and had pain in the left foot.
DW2-Dr. Arun examined Rajpal who was brought to the
hospital and there was pain and swelling in the left elbow, pain
and swelling in the right wrist. DW1-Dr. Shailza Aggarwal
examined x-ray of Rishipal and found that there was fracture
in the fifth metatarsal of the left foot. DW1-Dr. Shailza
Aggarwal also examined x-ray of Raj Pal and found fracture of
fifth metacarpal right hand. The injuries on the person of the
accused were not so serious.
22. Bharat Singh and his brothers were not carrying
any arms or deadly weapons. The accused-appellants if at all
any right accrued in their favour, while defending themselves,
acted in a manner which is unduly disproportionate to the
injury which they would have sustained at the hands of
complainant party who were not armed with any deadly
weapons. Thus, their act of firing shots which resulted in
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death of Girdhari, was not at all to prevent any injury which
was sought to be averted or which could have been reasonably
apprehended. At no point of time, any reasonable apprehension
of death or grievous injury was perceivable, but the
accused-appellants aggressively acted and fired shots at
deceased. Relying upon the evidence of PW-5-Anil Kumar,
High Court also recorded a finding that appellant fired Girdhari
from a short distance of four to five feet, even when the
complainant party was not armed with lethal weapons.
Appellant fired at Girdhari recklessly from a close range
indicating that the appellant-accused party were the
aggressors. Law does not confer a right of self-defence on a
man when he himself was the aggressor. In the present case,
the complainant party were not armed with lethal weapons; but
the appellant was armed with a pistol. When the appellant and
his party were the aggressors firing several rounds of firearm,
the High Court rightly held that the plea of self defence raised
by the accused is not sustainable. We find no reason
warranting interference with the conviction of the appellant
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under Section 302 IPC and sentence of life imprisonment
imposed on him.
23. Criminal Appeal arising out of SLP (Crl.)
No.10739/2013: So far as acquittal of Rishi Pal and Rajpal is
concerned, concurrent findings were recorded by both the trial
court as well as the High Court for acquitting them. The
appellate court would interfere with the order of acquittal only
when the court below ignores or overlooks important
circumstances and proved facts and misapplies the principles
of criminal jurisprudence or tries to gloss over them. In the
case in hand, it cannot be said that the reasonings recorded
by the courts below for acquittal of Rishipal and Raj Pal are
unreasonable warranting interference in exercise of
jurisdiction under Article 136 of the Constitution of India and
this appeal is liable to be dismissed.
24. Criminal Appeal arising out of SLP (Crl.)
No.6347/2013: As mentioned above, on the same day i.e.
4.12.2004, a cross case in the same police station (Police
Station, Sohna) was registered against the complainant party,
namely, Mahabir, Satish, Bharat Singh, Gajraj, Anil and
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Devender. According to the complainant-Raj Singh, on
3.12.2004, due to his illness he was in his house and at that
time he heard some abuse and when he reached the house of
his brother Rajpal, he saw Girdhari lying on the ground. He
further stated that Mahabir, Gajaraj, Anil, Devender, Bharat
Singh and Satish son of Mahipal were present there and Gajraj
was armed with lathi, Mahabir was armed with country made
pistol, Anil was armed with pharsa, Devender and Lallu were
having rods and Bharat Singh was having countrymade pistol
and Satish was having rod in his hand and these persons
caused injuries to his brothers Rajpal and Rishi Pal. After
completion of investigation, chargesheet was filed against
Mahabir and others in Sessions Case No. 3/2006. Vide
separate order dated 17.5.2008, the Additional Sessions Judge,
Fast Track Court, Gurgaon held that respondent party namely
Mahabir, Satish alias Lallu, Bharat Singh, Gajraj, Anil are
guilty of constituting unlawful assembly and causing grievous
injuries with blunt weapon and convicted them under
Sections 148, 323, 325, 452 IPC read with Section 149 IPC. For
conviction under Section 325 IPC read with Section 149 IPC,
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trial court sentenced each of them to undergo rigorous
imprisonment for two years and fine of Rs.1500/- each with
default clause. For conviction under other offences they were
imposed various sentence of imprisonment and also fine.
Sentence of imprisonment imposed on each of them were
ordered to run concurrently. Giving benefit of doubt, Devender
was acquitted of the charges. Challenging the verdict of
conviction, Mahabir and others filed Criminal Appeal
No.S-1062-SB/2008 before the High Court of Punjab and
Haryana and the High Court vide common order dated
30.01.2013 allowed the appeal of the accused persons and the
High Court acquitted them of all the charges.
25. As discussed earlier, place of occurrence was not
the house of Raj Singh or his brother’s house as is evident from
the fact, objects were not recovered immediately but recovered
only after a gap of three-four days and no credible explanation
is forthcoming from PW8-Kuldeep Singh (SI) and PW 13-
Rajender Singh (ASI) for such delay. By perusal of the evidence
on record, it is clear neither any firearm was used by Bharat
Singh and others nor any such firearm was found in their
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possession. As far as injuries sustained by Rishi Pal and
Rajpal are concerned, Rajpal sustained lacerated wound and
fracture fifth of metacarpal and Rishi Pal sustained fracture of
fifth metatarsal. The doctors have opined that the said injuries
are possible by a fall. As discussed earlier, Mahabir and others
were neither the aggressors nor there was any pre-meditation
to cause the said injuries. Upon consideration of the facts and
circumstances and the nature of injuries caused, the High
Court rightly held that the complainant party (Mahabir and
others) acted in private defence and acquitted them of the
charges. Considering the nature of injuries and other material
on record, in our view, the complainant party have not
exceeded their right of private defence and caused harm that
was necessary for the purpose of private defence. Upon
appreciation of evidence, the High Court rightly acquitted
Mahabir and others and we find no reason to interfere with the
same.
26. Criminal appeals arising out of S.L.P.(Crl.)
Nos.5767-5768/13. The conviction of the appellant-Raj
Singh under Section 302 IPC and sentence of life imprisonment
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imposed on him is confirmed and the appeals preferred by Raj
Singh are dismissed. Criminal appeals arising out of S.L.P.
(Crl.) Nos.6347/13 & 10739/13 filed by Raj Kumar and
Bharat Singh stand dismissed.
..………………….J. (T.S. Thakur)
...………………….J. (R. Banumathi)
.……………………J. (Amitava Roy)
New Delhi; April 23, 2015
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 701-702 OF 2015 (Arising out of S.L.P.(Crl.)Nos.5767-5768 of 2013)
Raj Singh …Appellant
Versus
State of Haryana etc. …Respondents WITH
CRIMINAL APPEAL NO. 703 OF 2015 (Arising out of S.L.P.(Crl.)No.6347 of 2013)
Raj Kumar ...Appellant
Versus
Mahabir & Ors. ...Respondents
WITH
CRIMINAL APPEAL NO. 704 OF 2015 (Arising out of S.L.P.(Crl.)No.10739 of 2013)
Bharat Singh ...Appellant
Versus
Rishi Pal & Ors. ...Respondents
J U D G M E N T
T.S. THAKUR, J.
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1. I have had the advantage of going through the order
proposed by my Esteemed Sister Banumathi, J. While I agree
with the conclusion arrived at by her, I would like to add a few
lines of my own.
2. Exception 2 to Section 300 of the Indian Penal Code provides
that culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Right of private defence is, in turn, recognised by Section 96 of
the Code which provides that nothing is an offence which is done
in the exercise of the right of private defence. Section 97 of the
Code recognises the private defence of the body and of property
and reads as:
“97. Right of private defence of the body and of property. – Every person has a right, subject to the restrictions contained in Section 99, to defend –
First.- His own body, and the body of any other person, against any offence affecting the human body.
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Secondly.- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.”
3. Section 99 of the Code deals with acts against which there is
no right of private defence and, inter alia, provides that the right
of private defence in no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence.
Section 100 of the Code deals with situations in which the right of
private defence of the body extends to voluntarily causing death
or of any other harm to the assailant, if the offence which
occasions the exercise of the right is one of the kind enumerated
under the said Section. The offences enumerated under the said
provision include offences like causing death, grievous hurt,
committing rape, gratifying unnatural lust and assault with the
intention of kidnapping or abducting. Section 103 of the Code
similarly deals with the right of private defence of property in
situations enumerated thereunder, which includes offences like
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robbery, house-breaking by night, mischief by fire committed of
any building, tent or vessel used as a human dwelling etc.
4. A conjoint reading of provisions of Sections 96 to 103 and
Exception 2 to Section 300 of the Code leaves no manner of doubt
that culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence, provided that such right is exercised without
premeditation and without any intention of doing more harm than
is necessary for the purpose of such defence. A fortiori in cases
where an accused sets up right of private defence, the first and
the foremost question that would fall for determination by the
Court would be whether the accused had the right of private
defence in the situation in which death or other harm was caused
by him. If the answer to that question is in the negative,
Exception 2 to Section 300 of the Code would be of no assistance.
Exception 2 presupposes that the offender had the right of private
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defence of person or property but he had exceeded such right by
causing death. It is only in case answer to the first question is in
the affirmative viz. that the offender had the right of defence of
person or property, that the next question viz. whether he had
exercised that right in good faith and without premeditation and
without any intention of doing more harm that was necessary for
the purpose of such defence would arise. Should answer to any
one of these questions be in the negative, the offender will not be
entitled to the benefit of Exception 2 to Section 300 of the Code.
Absence of good faith in the exercise of the right of private
defence, premeditation for the exercise of such right and acts
done with the intention of causing more harm than is necessary
for the purpose of such defence would deny to the offender the
benefit of Exception 2 to Section 300. The legal position on the
subject is fairly well settled by a long line of decisions of this
Court to which copious reference has been made by Banumathi, J.
No useful purpose would, therefore, be served by referring to
them over again. All that need be said is that whether or not a
right of private defence of person or property was available to the
offender is the very first question that must be addressed in a
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case of the present kind while determining the nature of the
offence committed by the accused, whether or not a right of
private defence was available to an offender is, in turn, a question
of fact or atleast a mixed question of law and fact to be
determined in the facts and circumstances of each individual case
that may come up before the court.
5. The High Court has, in the case at hand, clearly recorded a
finding that the appellants were the aggressors in the incident
that led to the death of deceased-Girdhari Lal. Banumathi, J. has
in the proposed order referred to the evidence supporting that
finding. Once it is held that the Raj Singh and others were the
aggressors and that the incident had taken place in the house of
the complainant and not at the house of the said appellants as
alleged by them, there is no room for the appellants to claim the
benefit of Exception 2 to Section 300 of the Code. That is so
particularly when neither deceased-Girdhari Lal nor others
examined as prosecution witnesses supporting the complainant’s
case were armed. The question whether the appellants exceeded
the right of private defence does not, therefore, really arise for
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consideration. Since no such right was, in the facts and
circumstances of the case, available to them, there was no
question of their exceeding the same.
6. With the above words, I concur with the order proposed by
my esteemed sister.
……..………….……….…..…J. (T.S. Thakur)
New Delhi April 23, 2015